Monthly Archives: September 2013

Bronx Defenders Didn’t Invent Holistic Defense—We Did

Okay, I jest a little. I promise this won’t be a Boston v. New York thing. I’m actually a big fan of the way in which Bronx Defenders has integrated representation across criminal, housing, family, and other types of cases. Sometimes, however, I lament the notion that this is a “new” idea.

Before BxD, there was Neighborhood Defender Service of Harlem (“NDS”). Some may quibble over whether NDS fits into the same category as BxD but I think they share an important core: community-oriented defense.

And long before either organization came to be, a group of young ambitious lawyers in Boston created the Roxbury Defenders. A few months ago, Roderick Ireland, the Chief Justice of the Massachusetts Supreme Judicial Court, penned an article fondly reminiscing on his time working at the Roxbury Defenders. Reading his piece, I was struck by many of the features of community-oriented, holistic defense that the organization exhibited at its inception. The attorneys would hold regular know-your-rights meetings and even did a 1-hour radio show each week where local callers could seek answers to basic legal questions. Moreover, Roxbury Defenders recognized and implemented the importance of social services advocacy, drug treatment, prison outreach, and the like.

Things change over time. Roxbury Defenders still exists but now as a unit of the Committee for Public Counsel Services (“CPCS”). And yet the spirit and commitment to holistic defense is still going strong in our organization and I’m proud to be connected (even if indirectly) to that history.

Sometimes reading through the literature on public defense, you can get the impression that mixing civil and criminal legal services, doing community outreach, and going beyond narrow representation is a brand new invention. It truly is a great goal but there’s nothing new about it. It’s retro, baby. It’s retro.

-Zachary Cloud

Is That High Price Attorney Worth It?

Happy Labor Day! I was reflecting on today, laboring, and the like and decided to post some impromptu thoughts. I count myself among the lucky few in the legal profession who can say that I love the type of work that I do. I didn’t go to law school because I wanted to be rich or because I didn’t know what else to do with my life; I went because I wanted to be a trial lawyer. I also went because I wanted to fight for the voiceless, the little guy, the poor yearning to breath free…

I get to do that now and it’s a pure joy. Along the path to this point in my life, I’ve seen some things that have made me seriously question the wisdom of paying a lot for some private attorney—at least in the context of criminal defense. Let me pass along a couple of anecdotes that help explain.

1. Giving Up The Dismissal

During the summer between my second and third years of law school, I worked as a “student practitioner” at a public defender’s office. Essentially, under state law I was allowed to handle my own cases so long as a licensed attorney in the office supervised me.

One of the cases I got was an 18 year old man charged with possessing alcohol under age. This gentleman had no prior involvement with the criminal justice system and was doing well in school. Moreover, I had enough experience observing and negotiating with the prosecutor assigned to this client’s case that I knew it was highly likely we could negotiate a dismissal, perhaps in exchange for some minor community service requirement. This would be an excellent resolution because my client wouldn’t be pleading guilty or giving up any rights and state law would allow him to have the matter immediately expunged (a.k.a. erased). It’d be as if he’d never been arrested.

When I called up the client a few days before the first pre-trial conference, he told me that his parents had hired a private attorney to handle the case. I thanked him for letting me know and wished him well. A few days later, I was in court when his attorney resolved the case in a manner that was far less favorable. The client pleaded no contest, gave up his rights to trial, and essentially was placed on what amounts to unsupervised probation. His parents probably paid close to $1,000 for a worse outcome than I could have gotten their son for free.

2. A Self-Solving Problem

I was talking with someone who told me that members of their family had fallen on hard times. This person went on to explain that a member of their family had been charged with a fairly serious felony and other family members had spent a lot of money to hire an attorney to “take care of” the case. The case stemmed from a domestic violence charge.

I don’t know very many of the details but I have a fairly good feel for what happened. Domestic violence cases typically happen without other witnesses—only the alleged victim and defendant were present and know what happened. Indeed, many times alcohol or other substances consumed prevent anyone from knowing exactly what happened. Many prosecutors hate domestics because it’s incredibly common for the alleged victim to refuse to cooperate.

As a defense attorney, this opens up an easy way to prevail: the alleged victim will approach the defense team actively seeking to help the defendant or will tell a defense investigator that nothing happened. Now there’s a fifth amendment issue to work with because even if the alleged victim is forced to testify, (s)he can claim the privilege against self-incrimination.

How, you ask? Well, either what the witness told the police was a lie (i.e. filed a false police report) or what the witness will testify to creates a risk of perjury because what they will testify to (their story) has changed since we talked to them. Either way, the witness can typically claim the privilege and validly refuse to testify.

The long story writ short is that domestic violence cases often resolve themselves because the person who called the police recants. In other words, it is not the skill of a high-priced, veteran criminal defense lawyer that makes a positive outcome likely—much of the problem is self-solving and unaffected by what type of lawyer is handing the case.

3. The Out-of-Towner

I sat in the jury box of a small courtroom in my hometown recently, doing a little bit of court watching. For context, my hometown is rural and Appalachian and everybody knows each other…or so it often seems.

As I was watching afternoon pre-trial conferences, one of the defendants came in accompanied by a lawyer who was from a city about an hour and a half away. From what I could tell—admittedly, not much—neither the lawyer nor the defendant had major ties to my town. The charge itself was a license suspension case I believe and, presumably, the defendant was just driving through when he was stopped.

Here, I need to make a confession. I have no reason to believe this particular attorney got a less favorable result for his client than someone who was local. I don’t practice in the state, I wasn’t privy to the case’s history, and I didn’t see anything that appeared obviously anti-outsider to me. However, one of the advantages to being local is seeing what the “norm” is. Put differently, you start to see what the judge is likely to do, what the other side will typically offer, what police practices are, and even how a jury might react to certain types of cases. Knowing these things is important when advising the client because clients are expecting you to provide information about what is likely to happen. Indeed, knowing what is likely to happen plays a part of providing competent representation by allowing the client to make informed decisions.

My guess is that this out-of-town attorney probably charged more than anyone local. Could he have done a better job than a local lawyer? I admit that I don’t have a definitive answer here. Maybe he’d see some creative motion than local counsel wouldn’t think of or perhaps his lack of connection to the area would allow him to fight more zealously without fear of being ‘punished’ down the road by an unhappy judge or prosecutor. However, the lack of knowledge surrounding local practice/custom could just as easily prevent him to give good advice. Not to mention the possibility that locals prey upon his ignorance—a possibility that leads down a rabbit hole I don’t care to explore right now.

4. What Does It All Mean?

I chose these preceding three examples because I think each shows the fallacy of “you get what you pay for” when it comes to criminal defense. Any bargain hunter out there knows the value of looking beyond the price tag. Can I find this item at an outlet mall? Can I find it online for less money? Is most of the price tag just because of the designer label? Sometimes we buy things precisely because of who made them…we find a value to having the Coach purse or Armani suit that is independent of the item’s quality. It makes us happy, in part, because it announces to the world that we have enough money to blow on such an item.

I wonder if we do the same thing with lawyers subconsciously? Do we see the veteran attorney with the fancy car and seek his representation because we believe he’s qualitatively better than some other attorney? I mean, he’s probably better at taking your money but does he consistently get better outcomes than other attorneys?

I acknowledge that these are questions I’m still working through but I have come to believe that there are plenty of factors most consumers probably don’t take into account when taking out a second mortgage or cleaning out their child’s college fund just to hire a high-priced attorney. Has the attorney regularly practiced where the client’s case is? Has he consistently achieved better results than other attorneys handling the same types of cases? Has he come up with creative arguments in previous cases? What does his written work product (e.g. briefs, motions) look like? How are his trial skills?

I’d want to know these sorts of things and see for myself. I have no problem with a highly skilled attorney earning his fair share but would be leery of those who charge more merely because of how long they have practiced or who they know. The 20 year prosecutor-turned-defense attorney might just be more interested in getting along with his old pals and the judges than he is in zealous advocacy. The exceptional personal injury lawyer may not practice enough criminal defense to do any better than another attorney who charges less. You get the idea… As my anecdotes demonstrate, the outcome of a criminal case turns on more than just how much money you paid for an attorney. There is a lot at work including how well your attorney knows the law, how well he knows local practice, how clever he is, and so on and so forth. Should you ever find yourself in a situation where you’re considering hiring an attorney, think carefully and critically about the choice. And if you’re assigned an attorney for free such as a public defender, don’t be too quick to dismiss the capabilities of those who represent the 75-90% of defendants and are likely the most experienced people you could get. You might be surprised to find that your public defender is the best attorney money can’t buy.

-Zachary Cloud